Duty of Care/Standard of Care

Barbara Barrowman

Andrew Latus

Jan. 6, 2003

Outline Concepts Why do these concepts matter?

Negligence Duty of Care

When does a duty of care exist? Standard of Care

Differing standards for differing roles?

Concepts Duty of Care

Exists in certain situations When it exists, a physician is obliged to provide care to some

individual. This obligation may be moral or legal or both. See Doing Right, Chapter 6

Standard of Care

Refers to the quality of care which must provided by a physician May vary with situation (e.g., emergency outside hospital) May vary with qualifications of the physician (e.g., specialist or GP)

The Law of Negligence The concepts of duty of care and standard of care are clearly

central to the proper practice of medicine.

There is also a very practical reason for taking these concepts seriously, namely, their significance where accusations of negligence are concerned.

Negligence

most common type of civil claim brought against health care professionals

physicians legally liable to patients for causing harm through failure to meet applicable standard of care

Negligence – Required Elements

1. Existence of a duty of care

2. Breach of standard of care

3. Some harm or injury to patient

4. Causal link between defendant (doctor)’s conduct and plaintiff (patient)’s injury

A session during the ISD course will address the topic of negligence more fully.

When Does a Duty of Care Exist? Once doctor-patient relationship is

established, duty of care arises When is a doctor-patient relationship established?

Duty of care beyond existing doctor-patient relationship? Emergencies Duty to third parties

Creating a Doctor/Patient Relationship “In providing medical service, do not

discriminate against any patient on such grounds as age, gender, marital status, medical condition, national or ethnic origin, physical or mental disability, political affiliation, race, religion, sexual orientation or socioeconomic status.[..] does not abrogate physician’s right to refuse to accept a patient for legitimate reasons.” (CMA Code of Ethics s. 7)

Terminating Doctor-Patient Relationships

May be terminated by patient, or in certain situations by doctor

Where doctor wishes to terminate relationship, there are specific requirements to protect patient’s interests (will be discussed in future session) See also material from session on difficult patients

Limitations on Duty of Care Request from patient

may raise questions of patient competence

Medical futility

Both these topics are complex and will be left aside for a later session

Case: Is there a Duty of Care? Dr. Rowe is a psychiatrist. While writing up a chart on the

psychiatry unit, one of nurses he knows asks him what he would recommend that her husband try for his “heartburn.” Dr. Rowe recommends that he try an antacid and if that doesn’t work, an acid-reducing medication.

Later that week, the nurse’s husband goes to emergency with his “heartburn” – tests reveal unstable angina and he is admitted for treatment.

Did Dr. Rowe have a duty of care towards the nurse’s husband?

Discussion Courts are likely to find duty of care wherever

it’s reasonable to expect reliance on medical advice, or reasonably forseeable that harm may result

Think about why you (as opposed to a lay person) are being asked for your opinion

Remember that advice you view as casually given may not be viewed that way by others.

Case: Duty of Care in Emergencies? Dr. Adams was rushing through the Avalon Mall on

Christmas Eve. She had just finished the last of her Christmas shopping, and was anxious to get going, as she was late for a family party. As she was about to leave the last store, she saw an elderly man suddenly collapse to the floor. The woman with him cried out, “Help, someone, please – my husband’s not breathing.”

Is there an ethical duty of care in this situation? Is there a legal duty of care in this situation?

Case: Duty of Care in Emergencies? Dr. Brophy is a busy family physician in a small community.

She is not accepting any new patients. The nearest emergency department is a 30 minute drive away.

One morning while seeing patients in her clinic, a woman rushes in and tells her receptionist that she needs a doctor to come down to the corner of the street where her husband has collapsed, apparently unconscious. Neither the woman nor her husband are patients of Dr. Brophy.

Is there an ethical duty of care in this situation? Is there a legal duty of care in this situation?

Duty of Care in Emergencies Most agree that an ethical duty exists

“Provide whatever assistance you can to any person with an urgent need for medical care.” (CMA Code of Ethics, s.9)

Traditionally it has been held that there is no legal duty of care However, a recent Australian case relied on a similar

provision in a Code of Ethics to impose a legal duty to render emergency medical assistance

Important to consider what the clinic holds itself out as doing (e.g., clinic vs. emergency room)

“Good Samaritan” Legislation If we accept the existence of an ethical duty of care

in emergency situations, this raises concerns about the physician’s ability to provide an adequate standard of care.

In most provinces, a doctor who provides emergency treatment in a place without adequate medical facilities is protected from liability for any death/injuries unless they are the result of “gross negligence”

Duty to Third Parties Duty to warn where risk of harm to third

parties Foreseeable MVA’s

These are not, however, cases in which one has a duty of care for these third parties as patients and so will not be dealt with in this session

Case: Standard of Care Sarah presented with right-sided lower abdominal pain. After

a history, physical exam, investigations and consultation with a surgeon and a gynecologist, she was suspected of having pelvic inflammatory disease and was admitted for observation and treatment.

Despite treatment with antibiotics, her condition deteriorated over the next several days.

Three days after admission, she was taken to the O.R. where a ruptured appendix was diagnosed and removed. Sarah suffered a lengthy and complicated post-operative recovery.

Does this case raise concerns about the standard of care?

Standard of Care: General Considerations

“Every medical practitioner [..] is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing [..] If he holds himself out as a specialist, a higher degree of skill is required..” (Crits v. Sylvester, S.C.C. 1956)

The standard is not one of perfection Mistake not necessarily = negligence However, deterioration or failure to respond to

treatment may require re-evaluation of initial diagnosis

Case: Standard of Care & House Staff Joe Green is a clinical clerk two weeks into his

surgery rotation. He is in a minor procedures clinic this morning with Dr. Sharp. Mrs. Barrett comes in to have a suspicious mole removed from her back.

Dr. Sharp says “Joe, you can do this one if Mrs. Barrett agrees”. Mrs. Barrett replies, “Sure, that’s fine with me.”

Does this case raise any concerns about standard of care?

Standard of Care - House Staff“[an intern] must use the undertaken degree of skill, and that cannot be less than the ordinary skill of a junior doctor […], as well as an appreciation of his own limitations and of the necessity for caution in anything he does.” (S.C.C. 1952)

Mistakes of house staff may also implicate others - hospital, supervising doctor

Students have an ethical obligation to know their own limits and to inform their supervisors and/or patients as to what these limits are

Case: Standard of Care & Constraints Dr. Lee is a family physician in a rural community. One of

his regular patients, John, comes to see him, complaining of worsening headaches over the last few weeks. Dr. Lee is concerned and is considering whether John should be seen by a neurologist and/or referred for a CT or MRI.

The nearest CT, MRI and neurologist is 10 hours drive away A memo was recently sent out from the regional hospital

regarding “unnecessary” referrals for CT’s,MRI’s and specialists

What does an adequate standard of care require?

Standard of Care - Locale & Facilities

In applying standard of care, the court may take into account medical resources (facilities, equipment) available to the physician and the type of community in which the physician practices

Standard of Care - Cost Constraints Evolving area of law, ethics and policy Tension between interests of individual

patients and cost constraints on societal level - doctors often caught in the middle

Judicial comments - doctor’s responsibility to individual patient takes precedence over responsibility to medicare system